CDirector of Public Prosecutions v Hewitt
[2023] VCC 843
•26 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-22-01601
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAM HEWITT |
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JUDGE: | HIS HONOUR JUDGE MULLALY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 April 2023 | |
DATE OF SENTENCE: | 26 April 2023 | |
CASE MAY BE CITED AS: | CDPP v Hewitt | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 843 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - Sentence
Catchwords: Plea – Child Abuse Material – Use Carriage Service – Possess – Mitigation – Rehabilitation – Imprisonment – Exceptional Circumstances Not Made Out – Recognisance Release Order – Sex Offender Registration Act.
Legislation Cited: Crimes Act 1914 (Cth) ss 16A and 21B; Sentencing Act 1991 (Vic) s 6AAA .
Sentence: 22 months imprisonment with release after serving 14 months of sentence – the recognisance release period being 8 months.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms A. Ambesi | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J. Barreiro | Geelong Law |
HIS HONOUR:
1 Sam Hewitt, on 5 April 2022, the police acting on information about your Google photo account, searched your house in Lara. What was found were thousands and thousands of photos and images depicting child abuse. Your library of child abuse material was stored on many of your electronic devices. To be precise there were a total of 5,849 unique files depicting child abuse material on nine devices owned by you.
2 Of the 5,849 files possessed by you; 95 were videos and the rest were images. Using the Interpol Baseline Scale, 2,329 images and 75 videos were category 1, and 3,425 images and 20 videos were category 2.
3 The material is the basis of Charge 2 on the indictment, which you pleaded guilty, being a Commonwealth charge of possession of child abuse material obtained or accessed using a carriage service.
4 You also pleaded guilty to using a carriage service to access the child abuse material being what was downloaded in terms of child abuse material on 6 December 2021.
5 The full facts and circumstances of your offending were set out in a prosecution opening which was tendered on the plea, which I have read. I will not repeat the details, as that in itself would be a distressing account of vile, depraved, child abuse material.
6 What I can say is that the category 1 material reveals young, mainly female children, some infants and up to the age of about 7. The acts perpetrated on these very small children are utterly depraved. What is depicted includes all manner of penetration of the children by adult males. There are also many instances of children who are made to, or are depicted engaging in, sexual acts on themselves. There are full and degrading exposures of genitalia.
7 The category 2 child abuse material includes again mainly female children between the age of 12 and 15. The acts depicted mirror those that I have just described for the younger children.
8 The number of images, 5,849, that you amassed not only reveals your dark depravity, but your persistence over a protracted period. Although the charge is necessarily your possession of the child abuse material on the day the police raided, it is plain from the data extracted from your devices that you had a perverted interest in child abuse material over some time.
9 Your primary mobile phone had a chat history for the encrypted messaging application Telegram showing a contact with the user name ‘Teen Girls’. On this device you had downloaded files with file names that included the words, ‘Teen’ and ‘Pre-Teen’, 40 separate times. You used searched terms such as, ‘Teen’ and ‘NSFW Telegram Links’. That is an acronym for the words, ‘Not safe for work’, this occurred 187 times that – or you viewed 187 times websites which contained terms such as ‘Pre-Teen’, ‘Teen’, or ‘Jail Bait’. The data on other devices reveal similar viewing of websites with similar terms.
10 The fact that you stored the child abuse material on many devices, including some portable hard drives, some of which replaced older devices indicates that this was far from some spontaneous conduct.
11 The nature of the material is bewildering in its level of depravity. You watched and downloaded actual young children being seriously and physically sexually abused. It only has to be said for the seriousness of your crime to be exposed. On any measure your possession of this material is serious criminality.
12 You must have known how wrong it was for you to become part of as a consumer of this dreadful internet industry. As I outlined you were then living with your then partner and 5 year old daughter.
13 Men like you are the reason why this sexually abusive industry survives and flourishes. Your downloading of material prompts more to be made, and the cycle of child abuse continues. Although your acts of scrolling, clicking, watching, downloading are probably in your mind quick and detached. The reality is a real child being penetrated or in some way sexually abused while filmed by others or photographed – this is a cruel event on each occasion. It must be seen for the evil involved including the role of consumers like you.
14 The seriousness of the offending and your moral culpability must be met or reflected in the weight to be given to public denunciation, appropriate punishment and deterrence.
15 There are, of course, other matters to be considered, including your personal circumstances. But before moving to those I will deal with Charge 1. It is separate though connected offending.
16 You downloaded a video with an explicit title including an abbreviation that you came – that those like you come to know that abbreviation is, ‘PTHC’ or ‘Pre-Teen Hard Core’. This download occurred on 6 December 2021, but it seems the file itself was not found on other devices. The principle issue with respect to this charge is to what extent there is to be cumulation or concurrency with the second charge. I’ll return back to this matter.
17 Your counsel’s very comprehensive written and oral plea on your behalf pointed out your possession of the child abuse material using a carriage service, did not see you interact or share material with other like offenders. There is no profiteering or commerciality on your part. You were not part of some distinct network of other internet criminals.
18 Of course it is important to measure the gravity of any offending, not by focussing on what other offences, such as selling child abuse material, you could have, but did not commit. Many of those matters that I have outlined are simply an absence of aggravating features, which are not by their absence in and of themselves mitigating of your offending. Rather your offending behaviour is as has been described already – it is serious.
19 Though there are, sadly, many more serious examples of this offending. There are examples where there are tens or hundreds of thousands of images that are possessed. There are those that make or, and, trade in child abuse material for profit. That is not your circumstances and I am well aware of it. That said, there are examples or less serious examples of crimes that have been dealt with by the courts as well.
20 As to your personal circumstances, you are 32. You were born in country Victoria and brought up in a hardworking stable and supportive family environment; one of three boys. As I understand it your family stand by you.
21 You went to school up to Year 12 before you left mid-way through to take up a carpentry apprenticeship. You worked in that profession for eight years before moving into diesel mechanics. Your employment of late has been with a business that services large agriculture harvesting machinery. Your working history is to your credit.
22 You met your partner at TAFE when you were retraining. As I understand it, you lived together and have a child that I have mentioned before. Your partner reacted to the discovery of your offending by ending the relationship and taking out an intervention order preventing any contact with your daughter. The Department of Human Services have also been involved.
23 It was put in the psychological report, and on your plea, that you have found separation from your daughter especially difficult as you considered yourself a committed father.
24 You report that you became a user of methamphetamines from age 20 – that is you explained that to the psychologist and your lawyers. It seems you were able to keep that drug taking a secret from your partner and your employers. You report that your use of methamphetamines increased during the offending period.
25 You were and remain at a loss to explain your offending. You told Ms Lechner, the psychologist, that you thought your increased drug use maybe an explanation. You also told Ms Lechner that you did not believe you engaged in this depraved activity for your own gratification. Ms Lechner doubted this, given the sheer volume of child abuse material and the timeframes that must have been involved.
26 This aspect of the psychological report is concerning as it reveals your lack of insight. There must be a consequential lessening of the confidence the court and the community can have in your prospects for complete reform. It means that some weight, albeit slight, needs to be given to deterrence to you. I say that in the context that you have a very limited criminal record; essentially one non-conviction fine for the crime of recklessly causing injury in 2011. You have been otherwise of good character until this offending.
27 As was pointed out by counsel for the Commonwealth Director of Public Prosecution, the appellate courts have said previous good character is to be given less weight than might otherwise be the case given the nature of these offences.
28 You are plainly ashamed at your offending, and realise it has brought an end to your relationship and previous family life. You are remorseful and were cooperative in providing passwords to the authorities.
29 Your plea of guilty was made quickly, and you must receive a benefit for that. Beyond that benefit, your plea of guilty must receive an augmented benefit because the criminal justice system is still beleaguered by long trial lists due to the pandemic. The benefit must be palpable to you and encouraging to others who are guilty to plead guilty.
30 As to your risk of re-offending, it is noted your stable circumstances as a working man. You have no entrenched mental health problems. It is said by Ms Lechner that your risk of re-offending is lowered if you remain free of drugs.
31 There was, as I understood it, no information as to your abstinence from drugs. But you are deeply shamed by your offending. You have, understandably, depression; that was seen by her as a consequence because you know the dire consequences for your life now that the crimes have been revealed.
32 The clinical analysis of your risk of re-offending, done by Ms Lechner, noted that there is little by way of empirical studies as to the risks involved. However, your substance abuse to a degree, your consequential mental health problems, and the past event of violence are relevant, making the risk of re-offending in Ms Lechner’s view, as I said, low. I must say that I would consider your lack of insight into the issue of personal gratification to be an important factor in your risk of re-offending.
33 Also I note, Ms Lechner did not consider that there was much by way of deviance or paedophilia or paedophilic traits. In my view, the nature especially the young age of the many images and videos, and the volume of material makes that conclusion less persuasive.
34 In the end a finding of risk is one factor. However, my view is, that the matter as to your risk can be dealt with by appropriate expert intervention as well as you resisting using drugs in the future.
35 Given your crimes are offences against Commonwealth laws, it is s 16A and the other provisions of the Crimes Act 1914 (Cth) that governs sentencing. I hope I have made clear that I have had regard to the relevant subsections of s 16A. I specifically had regard to the requirement that I impose a sentence which is of a severity appropriate in all the circumstances of the offence.
36 I have considered carefully the submission of your counsel that the appropriate sentence is one of imprisonment, but with immediate release on a recognisance with orders that you undertake a sex offenders program.
37 I have also considered the prosecution submission that a sentence of imprisonment with a recognisance release is within range, but that a period of actual incarceration is required.
38 In my view, the gravity of these crimes including the nature, the surrounding internet searches undertaken, the amount that was found and kept on many devices means that only a sentence involving actual incarceration can meet the requirement of the sentence being of a severity appropriate to all the circumstances.
39 This conclusion remains, notwithstanding that I have given full weight to those matters that I have mentioned in your favour, and also the value of your plea. It is always a grave step to send someone to prison for the first time. But the important message of deterrence and condemnation of these crimes would be too diluted if there were immediate release.
40 Also, given that your crimes are after the statutory changes on 23 June 2020, I cannot order immediate release unless I conclude or am satisfied that there are exceptional circumstances. While it was put by your counsel exceptional circumstances were established by the combination of all mitigatory matters and the level of seriousness of the offending. I am not satisfied that exceptional circumstances are established.
41 I consider that your circumstances here are as they are in many cases, and nothing at all stands out as being exceptional or out of the ordinary in respect of the offending or you as the offender.
42 Thus, the presumption is for a period of actual incarceration. If necessary I would in all the circumstances have imposed actual incarceration with or without statutory requirements of exceptional circumstances. In my mind it is clear nothing other than a period of imprisonment would be the appropriate sentence for these dreadful crimes.
43 I have considered other sentences, though, in the main the appellant decisions in Victoria and other states. Citations provided by your counsel to other non-custodial sentences imposed by my colleagues in this court have been considered, but they do not operate as precedence and turn very much on their own facts in the exercise of that judge’s wide sentencing discretion.
44 I have weighed up the need for cumulation or concurrency for Charge 1, and in the end I am persuaded to impose a completely concurrent sentence. I do note that the authorities make clear that appropriate cumulation can and should be ordered for these access offences. But in this instance the one downloaded on the one day in December 2021 ought be part of the total sentence imposed.
45 The sentence that I am about to announced is one less than three years; thus, I will set a recognisance release period. I will make an order that as part of that recognisance release you are to undergo a sex offender program as directed.
46 Doing the best I can, I sentence you as follows. For Charge 1, I sentence you to a term of imprisonment of one month; that will commence immediately. For Charge 2, I sentence you to a period of imprisonment of 22 months; that sentence will commence immediately. So the total effective sentence is 22 months. That is Charge 1 as wholly concurrent.
47 I then order that you be released on recognisance release after serving 14 months of the sentence that I have just imposed; thus, the recognisance release period, as it were, is eight months and the sum of the recognisance is $1000.
48 I order as part of the recognisance release, that is a condition under s 21B of the Crimes Act 1914, that you undertake treatment and rehabilitation by – as directed by the Community Corrections Service and the Sex Offender Management. I will make that clearer shortly.
49 Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of three years and six months with a non-parole period of two years and four months.
50 As a consequence of your offending you must register on the Sex Offenders Register. That requirement is mandatory, so too is the period of time, that period of time is 15 years. As in – it’s necessary pursuant to the provisions of the Act that I explain to you your requirements upon registration which will occur after your release. The requirements or responsibilities are considerable and the consequences are also very significant.
51 Now, having said all that, Mr Hewitt, you can take a seat.
52 Ms Ambesi and Mr Barreiro, you will need to assist me. I have not said, ‘To be of good behaviour for a period’, I need to do that; don’t I?
53 MS AMBESI: Yes, Your Honour. The good behaviour period can be up to five years.
54 HIS HONOUR: Yes. He must be of good behaviour for a period of two years.
55 MS AMBESI: There’s also a requirement, Your Honour, for supervision by corrections.
56 HIS HONOUR: Yes, all right. I think there is a number of mandatory conditions which are set out on this document which I can outline.
57 So as part of the order the mandatory conditions pursuant s 20(1)(b) upon your release is that you are to be subject to supervision of a probation officer for a period of – is that the same period as the recognisance release period or different?
58 MS AMBESI: It can be a different period, Your Honour. But my understanding is to undertake the sex offender treatment program about two years as necessary.
59 HIS HONOUR: Yes, yes, all right.
60 So that will be for two years and then you have to obey all reasonable directions. You cannot travel overseas or interstate without written permission; you just ask for that, and you have to undertake the sex offenders program which will take time.
61 There are other conditions that are necessary about reporting to the Community Corrections Office. That would be Geelong; would it? He lives in Inverleigh. Do we have to say that – where that all is now?
62 MS AMBESI: Yes, Your Honour. Part of the order requires an actual location.
63 HIS HONOUR: Yes, yes.
64 MS AMBESI: I think the closest is Geelong.
65 HIS HONOUR: Yes. I think he lives somewhere outside Geelong, and so Geelong would the place; wouldn’t it?
66 MR BARREIRO: Yes, Your Honour.
67 HIS HONOUR: It is not Colac; is it?
68 MR BARREIRO: I might seek that instruction for the sake of completeness, Your Honour.
69 HIS HONOUR: Yes, yes, all right.
70 MR BARREIRO: It is actually Ballarat, Your Honour.
71 HIS HONOUR: It is Ballarat?
72 MR BARREIRO: Yes.
73 HIS HONOUR: Sorry, Ballarat.
74 So you have got to report to the Office of Corrections within two working days. once you are released. You have got to receive visits from the Office of Corrections, and you have got to tell them if you change your address or your job and you have to attend, as I said, for the – for assessment as to your suitability and then treatment thereafter. The program is to reduce your re-offending; that’s the sex offenders program.
75 There – is there anything else required, Ms Ambesi?
76 MS AMBESI: Your Honour, there was also included under the heading in the draft order about the sex offenders treatment program. There was participation in drug treatment programs and mental health support.
77 HIS HONOUR: Yes.
78 MS AMBESI: If Your Honour is minded to make them there are - - -
79 HIS HONOUR: I am minded to make a drug treatment.
80 MS AMBESI: Yes.
81 HIS HONOUR: You have got to get some help with drug treatment as well. So that will be part of it. I am not sure of the mental health needs to be there; we’ll take that out.
82 MS AMBESI: As the court pleases.
83 HIS HONOUR: You can look after that in the mental health system rather than the criminal justice system. So I – I will put a line through that.
84 MS AMBESI: The only other requirement, Your Honour, is to explain to Mr Hewitt the consequences of a breach.
85 HIS HONOUR: Yes.
86 So, Mr Hewitt, the sentence I have imposed I have set out for you. It is 22 months imprisonment, but you will be released after 14 months. Should you not be of good behaviour through that time or not do the – then you will be at risk of having to do the further eight months. Also I put you on the program that I have outlined that is the - you have got to have drug treatment and sex offenders, should you not do that then you will come back before me for breach of this recognisance release. Do you understand?
87 ACCUSED: (Indistinct response.)
88 HIS HONOUR: Hopefully I have explained that accurately, Ms Ambesi.
89 MS AMBESI: Yes, Your Honour.
90 HIS HONOUR: Thank you.
91 Mr Barreiro, is there anything?
92 MR BARREIRO: Nothing further, Your Honour.
93 HIS HONOUR: No, all right. Well, all the documents will be signed.
94 Mr Hewitt, it is necessary that you head downstairs now. Your lawyers will no doubt come down and explain things to you.
95 Thank you very much for your assistance.
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